Patna High Court - Orders
Suresh Prasad Gupta vs The Patna Municipal Corporation Patna on 12 September, 2024
Author: Rajiv Roy
Bench: Rajiv Roy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.10124 of 2024
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Suresh Prasad Gupta
... ... Petitioner/s
Versus
The Patna Municipal Corporation Patna
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Birendra Sharma, Adv.
For the Respondent/s : Mr. Prasoon Sinha, Adv.
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CORAM: HONOURABLE MR. JUSTICE RAJIV ROY
ORAL ORDER
4 12-09-2024Heard learned Senior Counsel, Mr. Rajendra Narayan for the petitioner and Mr. Prasoon Sinha representing the Patna Municipal Corporation.
2. Pursuant to the order passed on 10.09.2024, the Estate Officer of the Patna Municipal Corporation (henceforth for short 'the Corporation') is present in the Court. The lease agreement of the year 1966 in paragraph 12 read as follows:
12. "that except with the previous consent of the First Party in writing and subject to the such terms and conditions as may be prescribed by the First Party the Second Party shall have no right within 10 years of the date of this indenture to transfer by way of sale, exchange or otherwise the aforesaid plot including the structure constructed thereon or the right, title or interest herein, but, no such consent shall be required in matters of gift in favour of an heir or relation or of will in respect of said properties."
Patna High Court CWJC No.10124 of 2024(4) dt.12-09-2024 2/6
3. It is to be noted that in the case of Sanjay Singh Vs. the State of Bihar and others (CWJC No. 13886 of 2011) disposed of on 10.07.2013 (Annexure-P-5/1), the learned Single Judge recorded in its order as follows:
"Thus, in my opinion, the requirement of payment of 50% of the profit earned would only arise when permission is also required to be taken from the authority concerned. Where such permission is not required, in my considered opinion, requirement of payment of mutation fee equivalent to 50% of the earned profit would also not be required. That apart, it is well settled that the parties would be bound by the terms and conditions of the agreement. In such situation when the deed of lease does not disclose any requirement of payment of 50% of amount earned by the concerned person on making transfer of the plot concerned even within ten years, in my opinion, by operation of rule introduced subsequently, such condition cannot be changed compelling the lessee to pay such amount. Section 93 of the Bihar Regional Development Authority, 1974/81 would be relevant for understanding the aforesaid proposition. Section 93(1)(d) clearly discloses that notwithstanding the repeal of Patna High Court CWJC No.10124 of 2024(4) dt.12-09-2024 3/6 Bihar Town Planning and Improvement Trust Act, 1951 in view of the provisions contained in Section 93(1) of the Act, anything done or any action taken in the exercise of any power conferred by or under the said Ordinance, presently the Act, shall be deemed to have been done or taken in exercise of powers conferred by or under the present Act. Similarly Section 93(2) provides that anything done or any action taken under the Bihar Town Planning and Improvement Trust Act, 1951, so far as it is not inconsistent with the provisions of the present Ordinance or Act, would be deemed to have been done or taken under those provisions itself. Sub Section 2(c) of the aforesaid Section provides that all debts, obligations and liabilities incurred, all contracts entered into and all matters to be done by, with or for the improvement Trust or Town Planning Authority and the Controlling Authority shall be deemed to have been incurred, entered into or engaged to be done by, with or for the authority, Not only that, Sub Section 2(1) provides that any plot held by any person as lessee from the Improvement Trust under a registered deed of lease for residential purpose shall be deemed to have been vested in him as perpetual lease from generation to Patna High Court CWJC No.10124 of 2024(4) dt.12-09-2024 4/6 generation on payment of fee to the authority at the rate of one rupee per square meter.
From conjoint reading of the aforesaid provisions, one would come to a definite conclusion that the deed of lease executed by the Patna Improvement Trust would be considered to have been executed by the P.R.D.A. itself and, thus, it would also be bound by the terms and conditions set forth in the deed of lease, i.e.. Annexure-1.
Thus, in my opinion the PRDA cannot ask the allottee to part with 50% of the earned amount even in view of the Rule 20 of PRDA (Disposal of Land) Rules 1978 also as that would be required only if the transfer is being made within ten years from the date of execution of deed of lease in favour of the allottee, which is admittedly not been done in the case in hand.
Accordingly, the issue no.(i) is answered in affirmative and issue no.2 is answered in negative. The writ petition stands allowed and the impugned communication contained in Annexure-5 is quashed."
4. Everything has been recorded in earlier order dated 11.07.2024 as to how the matter thereafter traveled before the Division Bench in LPA No. 512 of 2016 (the Commissioner, Patna High Court CWJC No.10124 of 2024(4) dt.12-09-2024 5/6 Patna Municipal Corporation Vs. Sanjay Singh and others), it came to be dismissed on 13.12.2017 which followed SLP(C) No. 12463 of 2018 (the Commissioner, Patna Municipal Corporation and Anr. Vs. Sanjay Singh and others) which again was dismissed. Despite that, the demand is continuing.
The counter affidavit was filed on behalf of the respondents duly signed by Mr. Pradeep Kumar Rai, who is the Estate Officer of the Corporation and is present before this Court and in paragraph 8, it is simply stated that the facts of the case of Sanjay Singh decided vide order dated 10.07.2013 in CWJC No. 13886 of 2011 are different from the facts of the instant case.
5. Nothing was further recorded as to how this case is different from Sanjay Singh (supra) case and in that background, the Estate Officer was directed to appear before this Court and explain the difference.
6. Today, pursuant to the order, the Estate Officer appeared and he explained that Section 20 allows 'the Corporation' to demand the 'labhansh' (dividend). It is surprising that despite an order passed by learned Single Judge, affirmed by the Division Bench and subsequently, the petition of 'the Corporation' having been dismissed by the Hon'ble Apex Patna High Court CWJC No.10124 of 2024(4) dt.12-09-2024 6/6 Court, the Estate Officer is straightaway justifying the demand.
7. However, since it has been submitted orally, it would be appropriate that same comes by way of affidavit, duly endorsed by the none else than the Municipal Commissioner, Patna Municipal Corporation so that an appropriate order is passed in the matter. The affidavit must also clearly speak the difference between this case and that of Sanjay Singh (supra) as also similar such cases prompting 'the Corporation' to keep demanding 'Labhansh' despite dismissal of its appeal from the Hon'ble Apex Court on 14.05.2018.
8. In that background, list this case after three weeks allowing the Patna Municipal Corporation to file supplementary counter affidavit elaborating paragraph 8 of the counter affidavit filed on 09.08.2024.
9. The personal appearance of the Estate Officer, P.M.C. is dispensed with for the present.
10. List this case after three weeks.
(Rajiv Roy, J) Vijay Singh/-
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